LIVINGSTON v. ASTRUE
Filing
26
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 9/29/2014; that Plaintiff's Motion for Judgment on the Pleadings (Doc. 20 ) is DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. 22 ) is GRANTED, and that this action is dismissed with prejudice. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GENEVA B. LIVINGSTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:11CV501
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Geneva B. Livingston, brought this action
pursuant to Section 205(g) of the Social Security Act, as
amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of Defendant, the Commissioner of Social
Security, denying Plaintiff’s claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under
Titles II and XVI, respectively, of the Social Security Act.
The court has before it the certified administrative record and
the parties have filed cross-motions for judgment.
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the Defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
1
I.
BACKGROUND
Plaintiff protectively filed applications for disability
insurance benefits and supplemental security income on July 11,
2008, alleging a disability onset date of November 2, 2007.
(Tr. at 14, 117-27.)
After her claims were denied initially
(Tr. at 48-49) and upon reconsideration (Tr. at 50-51),
Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”), which took place on April 13, 2010 (Tr. at 23).
The
ALJ ultimately found that Plaintiff was not under a disability
from the date of her applications through the date of the
decision.
Specifically, the ALJ identified Plaintiff’s right
carpal tunnel syndrome, arthritis, and back and arm pain as
severe impairments, but found that she nevertheless retained the
residual functional capacity (“RFC”) to perform the full range
of medium work.
(Tr. at 16, 18.)
Because, based on vocational
expert testimony, the ALJ determined that Plaintiff’s RFC would
allow her to perform all of her past relevant work, he concluded
that Plaintiff was not disabled under the Social Security Act.
(Tr. at 20-22.)
After unsuccessfully seeking review of this
decision by the Appeals Council, Plaintiff filed the present
action in this court.
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II.
ANALYSIS
Plaintiff now argues that the ALJ erred in formulating her
RFC.
Specifically, she alleges that the ALJ failed to (1) apply
the correct standard to evaluate Plaintiff’s pain, (2) properly
consider the opinions of Plaintiff’s “treating and examining
physicians and other medical sources,” (3) perform a “functionby-function analysis” of Plaintiff’s functional limitations and
restrictions, (4) consider the combined effects of all of
Plaintiff’s impairments, including non-severe impairments, and
(5) further develop the record in light of ambiguous evidence
surrounding Plaintiff’s mental symptoms.
Plaintiff further
contends that the alleged errors in her RFC assessment and
corresponding hypothetical questions to the vocational expert
rendered the ALJ’s finding as to past relevant work at step four
of the analysis unsupported by substantial evidence.
A.
Residual Functional Capacity (RFC)
i.
Credibility Determination of Subjective Pain
Plaintiff first challenges the ALJ’s credibility finding,
arguing that the ALJ failed to articulate his reasons for
discrediting her subjective pain testimony or consider her
objective medical evidence of pain.
(Pl.’s Mem. in Supp. of
Mot. for J. on the Pleadings (“Pl.’s Br.”) (Doc. 21) at 14, 16.)
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In Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), the Fourth
Circuit set forth a two-part test for evaluating a claimant’s
statements about symptoms.
“First, there must be objective
medical evidence showing ‘the existence of a medical
impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be
expected to produce the pain or other symptoms alleged.’”
at 594 (quoting 20 C.F.R. §§ 416.929(b) & 404.1529(b)).
Id.
If the
ALJ determines that such an impairment exists, the second part
of the test then requires consideration of all available
evidence, including Plaintiff’s statements about her pain or
other symptoms, in order to evaluate the intensity and
persistence of those symptoms, and to determine the extent to
which they affect her ability to work.
Craig, 76 F.3d at 596.
Notably, while the ALJ must consider Plaintiff’s statements
and other subjective evidence at step two, he need not credit
them “to the extent they are inconsistent with the available
evidence, including objective evidence of the underlying
impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges
she suffers.”
Id. at 595.
This approach facilitates the ALJ’s
ultimate goal, which is to accurately determine the extent to
which Plaintiff’s pain or other symptoms limit her ability to
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perform basic work activities.
Thus, a plaintiff’s “symptoms,
including pain, will be determined to diminish [her] capacity
for basic work activities [only] to the extent that [her]
alleged functional limitations and restrictions due to symptoms,
such as pain, can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R.
§§ 404.1529(c)(4) and 416.929(c)(4).
Relevant evidence for this
inquiry includes Plaintiff’s “medical history, medical signs,
and laboratory findings[,]” Craig, 76 F.3d at 595, as well as
the following factors set out in 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3):
(i)
[Plaintiff’s] daily activities;
(ii) The location, duration, frequency, and intensity
of [Plaintiff’s] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects
of any medication [Plaintiff] take[s] or [has] taken
to alleviate [her] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff]
receive[s] or [has] received for relief of [her] pain
or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to
relieve [her] pain or other symptoms (e.g., lying flat
on [her] back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiff’s]
functional limitations and restrictions due to pain or
other symptoms.
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Where the ALJ has considered these factors and has heard
Plaintiff’s testimony and observed her demeanor, the ALJ’s
credibility determination is entitled to deference. Kearse v.
Massanari, 73 F. App’x 601, 603 (4th Cir. 2003) (“An ALJ’s
assessment of a claimant’s credibility regarding the severity of
pain is entitled to great weight when it is supported by the
record.”); see Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984).
As such, this court “will reverse an ALJ’s credibility
determination only if the [plaintiff] can show it was ‘patently
wrong.’”
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)
(quoting Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990));
Bekat v. Colvin, No. 1:10CV159, 2013 WL 6850611, at *5 (M.D.N.C.
Dec. 30, 2013).
In the present case, the ALJ determined at step one of
Craig that Plaintiff’s carpal tunnel syndrome, arthritis, and
back and arm conditions could reasonably be expected to produce
the pain she alleged.
However, at step two, the ALJ found that
Plaintiff’s testimony regarding the intensity and persistence of
her pain was incredible to the extent it would prevent her from
performing medium work.
Contrary to Plaintiff’s argument, the
ALJ’s decision included ample support for this conclusion.
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The decision first explains that Plaintiff was able to
perform medium work prior to being laid off for “businessrelated” reasons in November, 2007, and that
[T]here is no evidence of significant deterioration in
[her] medical condition since that layoff. A
reasonable inference, therefore, is that [Plaintiff’s]
impairments would not prevent the performance of that
job since it was being performed adequately at the
time of the layoff despite a similar medical
condition.
Moreover, [Plaintiff] received unemployment insurance
benefits for 24 months following that layoff. . . .
One who receives unemployment insurance benefits holds
[herself] out as having the ability to work if
employment is offered. In order to collect
unemployment insurance benefits[,] the individual must
certify on a weekly basis that [she is] ready, able
and willing to work. Such a circumstance, without
explanation, contradicts [Plaintiff’s] allegations
that [she] was disabled as of [her] alleged onset
date.
(Tr. at 19.) Indeed, without the “significant deterioration” of
a claimant’s medical condition, the past ability to work with a
persisting condition will preclude, as a matter of law, a
finding of disability based on that condition. Craig, 76 F.3d at
596 n.7. Furthermore, while the receipt of unemployment benefits
alone is insufficient to prove an ability to work, Lackey v.
Celebrezze, 349 F.2d 76, 79 (4th Cir. 1965), the ALJ may
consider applications for unemployment insurance in making
credibility assessments. Guthrie v. Colvin, No. 4:13-CV-57-FL,
2014 WL 2575318, at *6 (E.D.N.C. June 9, 2014). Moreover, as
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discussed infra Section II.A.ii, the state agency medical
consultants’ analyses were consistent with the ALJ’s RFC
assessment.
Therefore, the ALJ both applied the correct legal
standards for evaluating Plaintiff’s subjective claims of pain
and adequately supported his credibility assessment.
ii.
Treating Physician
Plaintiff next argues that the ALJ failed to give due
weight to the medical evidence provided by Plaintiff’s treating
physicians.
The ALJ’s decision recounted Plaintiff’s medical
records and opinion evidence at length.
Plaintiff, however,
contends that the ALJ “ignored” the opinions of her examining
and treating physicians.
Defendant correctly counters that
“Plaintiff submitted no medical opinion from a treating or
examining physician that reflected a judgment about what she
could still do despite her impairment(s) and what her physical
and/or mental restrictions were, if any.”
(Comm’r Mem. in Supp.
of Mot. for J. on the Pleadings (Doc. 23) at 10.)
Plaintiff fails to identify any physicians by name.
In fact,
Instead,
her brief refers, more broadly, to various hospitals, clinics,
and a consultative examiner, all of whom provided various
diagnoses and clinical findings without evaluating the impact of
those findings on Plaintiff’s ability to work.
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The state agency medical consultants provided the only such
analysis of record.
Dr. Ebosele X. Oboh’s opinion incorporated
the findings of all of Plaintiff’s previous treating and
examining physicians and concluded that Plaintiff’s back and
neck pain and other symptoms from her carpal tunnel syndrome and
arthritis did not impair her ability to perform the full range
of medium work as of August 19, 2008.
(Tr. at 20, 257-64.)
A
second physician, Dr. Stephen Levin, affirmed Dr. Oboh’s
assessment after reviewing updated medical records on
January 22, 2009.
(Tr. at 294.)
These opinions are consistent
with the ALJ’s above findings regarding Plaintiff’s post-layoff
condition.
iii. Function-by-Function Assessment
Plaintiff next challenges the RFC assessment by contending
that the ALJ erred by failing to make a function-by-function
analysis of Plaintiff’s abilities as required by Social Security
Ruling 96-8p, Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 362207 (“SSR 96-8p”).
According to this Ruling, “[t]he RFC assessment must first
identify the individual’s functional limitations or restrictions
and assess his or her work-related abilities on a function-byfunction basis . . . . Only after that may RFC be expressed in
terms of the exertional levels of work.”
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61 Fed. Reg. 34475.
SSR 96-8p specifically requires that the RFC assessment “address
both the remaining exertional and nonexertional capacities of
the individual” and further defines “exertional capacity” as “an
individual’s limitations and restrictions of physical strength
and defines the individual’s remaining abilities to perform each
of seven strength demands:
Sitting, standing, walking, lifting,
carrying, pushing, and pulling.”
61 Fed. Reg. 34477.
Significantly, SSR 96-8p notes that “[e]ach function must be
considered separately.”
Id.
Nevertheless, as this court explained in an analogous case,
[T]here is a distinction between what the ALJ must
consider and what he must articulate in the decision.
Ruling 96-8p contains a section entitled “Narrative
Discussion Requirements” which details what an ALJ is
required to articulate regarding a claimant’s RFC. The
section does not require an ALJ to discuss all of a
claimant’s abilities on a function-by-function basis
but, rather, only to “describe the maximum amount of
each work-related activity the individual can perform
based on the evidence available in the case record.”
An earlier provision in the Ruling places an even
finer point on the issue: “When there is no allegation
of a physical or mental limitation or restriction of a
specific functional capacity, and no information in
the case record that there is such a limitation or
restriction, the adjudicator must consider the
individual to have no limitation or restriction with
respect to that functional capacity.”
Joyce v. Astrue, No. 1:06CV27, 2009 WL 313345, at *14 (M.D.N.C.
Feb. 5, 2009) (citations omitted).
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Here, the ALJ discussed Plaintiff’s medical history in
detail, and his finding that Plaintiff can perform medium
exertional level work - meaning that Plaintiff can lift and
carry 50 pounds occasionally and 25 pounds frequently during an
eight-hour day - is supported by (1) the opinions of state
agency medical consultants Oboh and Levin, (2) her work stoppage
for reasons other than allegedly disabling impairments, and (3)
her subsequent collection of unemployment benefits.
The only
possible suggestion of limitations not discussed by the ALJ stem
from the reduced range of motion and right-hand strength and
coordination identified by Dr. Elaine A. Staten in her
consultative examination.
(Tr. at 19-20, 251-56.)
However, Dr.
Staten mentioned no restrictions related to these findings, and
the two state agency consultants who evaluated this information
opined that her findings merited no further work restrictions.
Again, Plaintiff points to no evidence contrary to the ALJ’s
decision other than her own subjective pain allegations.
iv.
Combined Effects of Impairments
Plaintiff next argues that the ALJ failed to consider the
combined effects of all of her impairments, including her nonsevere impairments, when evaluating her RFC.
In particular, she
challenges the ALJ’s omission of limitations related to her
depression, which the ALJ classified as non-severe. In raising
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this challenge, Plaintiff also contends that the ALJ erred in
failing to further develop the record surrounding her alleged
mental impairment.
As Defendant correctly notes, the ALJ explicitly considered
Plaintiff’s allegations of depression, which she raised for the
first time at her hearing, and concluded that her depression was
a medically determinable mental impairment.
(Tr. at 17.)
The
ALJ then considered the extent to which depression interferes
with Plaintiff’s ability to function in four broad functional
areas:
activities of daily living; social functioning;
concentration, persistence, and pace; and episodes of
decompensation.
20 C.F.R. §§ 404.1520a(c)(2)-(3) and
416.920a(c)(2)-(3).
The ALJ found, based on Plaintiff’s
testimony, medical records, and the findings of two psychiatric
consultants, that Plaintiff had no restrictions in terms of
daily living or social functioning, mild limitations in
concentration, persistence, and pace, and had experienced no
episodes of decompensation.
(See Tr. at 265-92.)
The ALJ
therefore concluded that Plaintiff’s “depression does not cause
more than minimal limitation on [her] ability to perform basic
mental work activities and is therefore non-severe.”
(citing Tr. at 166-73, 213, 252-56, 296-300).)
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(Tr. at 17
v.
ALJ’s Duty to Develop the Record
Plaintiff does not directly challenge the findings related
to her depression, nor does she explain what, if any,
limitations from depression should be included in her RFC.
Instead, she suggests that evidence of depression existing prior
to the hearing “indicated a severe problem relating to
depression, as well as bipolar or maybe schizophrenia.”
Br. (Doc. 21) at 21.)
(Pl.’s
She argues that this evidence created an
“independent, affirmative duty” for the ALJ to continue her
hearing and further develop the record.
(Id.)
While ALJs have
a general duty to adequately develop the record, Craig, 96 F.3d
at 591, “[a]n ALJ is under no obligation to supplement an
adequate record to correct deficiencies in a plaintiff’s case.”
Lehman v. Astrue, 931 F. Supp. 2d 682, 693 (D. Md. 2013); see
Rice v. Chater, 53 F.3d 329 (4th Cir. 1995)(unpublished)(“[ALJ]
is not required to act as plaintiff's counsel.”). “As such, a
remand is appropriate only if the record is so deficient as to
preclude the ALJ from making an educated decision as to the
extent and effects of plaintiff’s disability.” Lehman, 931 F.
Supp. 2d at 693.
Here, the supporting evidence cited by Plaintiff almost
entirely post-dates the ALJ’s decision and was not submitted to
the Appeals Council.
The only exceptions are records showing
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that Plaintiff was prescribed anti-depressant medication in late
2009 in response to her new complaints of depression and that
her medications and dosages were adjusted over the following
months.
(Tr. at 296-98, 306.)
Such evidence, without more,
fails to indicate a worsening condition, let alone creates an
affirmative duty for an ALJ to seek out further information.
The majority of evidence Plaintiff cites in her brief
centers on her involuntary commitment for psychosis on June 17,
2010, shortly after the ALJ’s June 7, 2010 decision.
At that
point, Plaintiff reported to an emergency room physician that
“little green men were trying to hurt her.”
(Pl.’s Br. (Doc.
21-1) at 4-5.) Understandably, her arguments seek to tie this
later evidence to the time period at issue here, yet, despite
its existence at the time of her appeal, Plaintiff failed to
submit this evidence to the Appeals Council.
(See Tr. at 1-10.)
Moreover, the Appeals Council need only consider additional
evidence if it “relates to the period on or before the date of
the ALJ’s decision.”
Wilkins v. Sec’y of Health & Human Servs.,
953 F.2d 93, 95-96 (4th Cir. 1991) (citing Williams v. Sullivan,
905 F.2d 214, 216 (8th Cir. 1990)).
In the present case, no
evidence before the ALJ suggests any level of psychosis or
serves to link Plaintiff’s later psychosis to her earlier,
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relatively mild depressive symptoms.2
Accordingly, substantial
evidence supports the ALJ’s RFC assessment.
B.
Past Relevant Work
Plaintiff next argues that, because the hypothetical
questions to the vocational expert were based on an erroneous
RFC assessment, the ALJ’s finding as to past relevant work at
step four of the analysis was unsupported by substantial
evidence.
Because, as fully explained above, substantial
evidence supports an RFC for medium work, the ALJ did not err in
basing his disability determination on the vocational expert’s
testimony that Plaintiff could return to her past medium and
light exertional level jobs.
III.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Judgment on the Pleadings (Doc. 20) is DENIED, that Defendant’s
Motion for Judgment on the Pleadings (Doc. 22) is GRANTED, and
that this action is dismissed with prejudice.
A judgment
Because it was not available to the ALJ or the Appeals
Council, this evidence, even if relevant, would not show that
the ALJ’s conclusion was unsupported by the substantial evidence
available at the time or that the Appeals Council’s decision was
incorrect. If Plaintiff still wishes to pursue a claim based on
her more recent mental impairments, she remains free to do so in
subsequent disability applications.
2
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consistent with this Memorandum Opinion and Order will be
entered contemporaneously herewith.
This the 29th day of September, 2014.
_______________________________________
United States District Judge
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